Ulp. Pactum est duorum consensus atque conventio: pollicitatio vero offerentis solius promissum. Et ideo illud est constitutum, ut si ob honorem pollicitatio fuerit facta, quasi debitum exigatur; sed et coeptum opus, licet non ob honorem promissum, perficere promissor cogetur. -D. 50, 12, 3 pr. Id. Si quis rem aliquam voverit, voto obligatur; quae res personam voventis, non rem quae vovetur, obligat.-Voto autem patres familiarum obligantur puberes sui iuris: filius enim familias vel servus sine patris dominive auctoritate voto non obligantur.—1. 2 pr., § 1 eod. The ground of the binding force of contracts according to Civil Law consisted originally-by the ius civile proprium Romanorum-alone in a definite (oral or written) form of engagement. The Formal Contracts (stipulatio, dotis dictio), BOOK III. Pt. 1. Ch. II. were 'nexum,' VERBAL contracts and the LITERAL contract.a An actionable character a'Anct. Law,' was, accordingly, in the older Roman Law (in the sixth P. 325. or seventh century U.C.) attributed to certain informal contracts. These were the Material Contracts, determined by the auctoritas prudentium and Praetorian Edict, as based solely upon 'fides' (keeping one's word, reliance upon performance of what was promised, integrity in dealings) and ranged under the ius gentium. The element upon which the action was based was in 1 A bargain is the agreement and convention of two persons; whilst a proposal is the promise alone of the person making the offer. And so it has been ordained that an offer can be enforced as though a debt, if it have been made for the sake of office; but even work begun the promisor must complete, although it were not promised for the sake of office. 2 If a man has vowed something, he is bound by his vow, and he that makes the vow is personally bound by this, and not the thing vowed.-Now by a vow patresfam. are bound that are of the age of puberty and independent, for a fil. fam. or slave, apart from the authority of the father or master, is not bound by a Vow. the case of some of them the parting with, and the receipt of, a thing under agreement for restitution. Such were the REAL Contracts: a mutuum,' ' fiducia,' b 'depositum,' 'commodatum,' ' pignus.' In four very important and frequent contracts, however, the mere agreement of the contracting parties (nudus consensus) was already, on account of their subject matter, recognised as a legally valid causa. These were the CONSENSUAL Contracts: Purchase and Sale, Letting for hire, Partnership and Mandate, which, with the single exception of the last mentioned, always engendered reciprocal obligations. With these were ranged later on the so-called INNOMINATE Contracts. Cic. de off. 1, 8, 23: Fundamentum autem est iustitiae fides, i.e. dictorum conventorumque constantia et veritas; . . . credamusque, quia fiat quod dictum est, appellatam fidem.' Gell. xx. 1, 39-40: Omnium (virtutum) maxime atque praecipue fidem (populus Romanus) coluit sanctamque habuit tam privatim quam publice. . . . Hanc autem fidem maiores nostri non modo in officiorum vicibus, sed in negotiorum contractibus sanxerunt." Gai. iii. 89: Et prius videamus de his quae ex contractu nascuntur; harum quattuor genera sunt: aut enim re contrahitur obligatio aut verbis aut litteris aut consensu.3 Ibid. §§ 135-137: Consensu fiunt obligationes Now the basis of all justice is fides, i.e., adhesion to, and truth of, things said and agreed; . and let us suppose that it is called fides' because what has been said is done. 2 Of all (virtues, the Roman people) primarily and chiefly cultivated fides, and regarded it as sacred both in private and in public. . . . Now our ancestors have put a sacred character on this fides, not merely in respect of mutual obligations, but in contracts of business. 3 And first let us consider those which arise from contract. Of these there are four classes; for an obligation is contracted either by the thing done, or by words, or by writing, or by consent. in emptionibus venditionibus, locationibus con- I. OBLIGATIONES EX CONTRACTU.« THE SYSTEM OF CONTRACTS IURE CIVILI. $116. FIRST, NEXUM BOOK III. Pt. I. Ch. II. a Holl. pp. 191, sqq. Anct. Law,' pp. 314, sqq. с 'Nexum' in the wider sense is every legal transaction per aes et libram'; in the narrower sense, § 79. such as relates to the creation of a pecuniary claim. It was the oldest loan, the antique national moneytransaction, and was entered into by the weighing of Roman money in balances, in the form of mancipatio,' accomplished by a solemn harangue, which enunciated the purpose of such weighing. The form employed was perhaps as follows: Quod ego tibi mille asses (s. libras aeris) hoc aere aeneaque libra nexos dedi, eos tu mihi post annum cum foenore unciario dare damnas 1 Obligations arise from consent in buying and selling, letting and hiring, partnerships and mandates. We therefore say that in these forms obligations are created by consent, because there is no speciality either of words or writing required [and it is not even necessary that anything should be given, for the obligation to acquire binding force], but it is enough that those who are contracting the business have come to a common understanding. Likewise, in these contracts, the one is bound to the other for all that the one ought in fairness and equity to do for the other, whereas in verbal obligations, one party stipulates and the other promises. BOOK III. Pt. I. Ch. 11. esto,' a Originally the form of the actual loan; the nexum could also occur as a symbolic or fictitious loan, "So Huschke. after that the practice of weighing the money was Thus at the same time a Real and a Formal contract. entirely discontinued, and also the money-payment separated from the legal act itself; and in this shape, -being an abstract form of obligation-it was applicable to most of the obligatory agreements for the formal creation and change of pecuniary claims arising therefrom. Moreover, a 'nexi obligatio' arose in purchase per mancipationem in respect of the purchasemoney to be repaid by the vendor upon eviction of the and in a legacy by damnatio.d • D. 21, 2, 53, 1. thing, d Ulp. 24, 4, 8. Fest. h. v. Nexum est, ut ait Gallus Aelius, quodcumque per aes et libram geritur; idque necti dicitur; quo in genere sunt haec: testamenti factio, nexi datio, nexi liberatio. Nexum aes apud antiquos dicebatur pecunia, quae per nexum obligatur (p. 165, M.).1 Varro de LI. VII. § 105 (Müll.): Nexum Manilius scribit, omne quod per aes et libram geritur, in quo sint mancipia. Mucius, quae per aes et libram fiant ut obligentur, praeter quae mancipio dentur.2 The significance of the nexum lay in the notoriety of the sanctiori, and in the strict, public nature of the obligation entered into. After the lapse of the term for payment, the claims could be at once realised; the debtor was situated exactly like the iudicatus' or 'in iure confessus'; he him 1 A nexum, as says G. A., is any transaction by copper and balance, and that is said to be bound; in which category are the following the making of a testament, the giving of a bond, discharge from a bond. Property made liable per nexum was spoken of amongst the ancients as nexum aes. 2 Man. by nexum describes every transaction by copper and scales, amongst which are mancipia. Muc.: whatever comes about by copper and scales, so as to be binding, besides things granted by mancipium. BOOK III. Pt. I. Ch. II. the person self became nexus' and was subject, as they, to themanus iniectio,' to being led away into slavery for debt, and besides to sale by the creditor." How- a For the vinder ever, after this right of private incarceration by the poena dupli of creditor was curtailed by some lex that is uncertain, guilty of falsehood, see § 192. but perhaps the 1. Valeria, and was abolished by a lex Poetelia (variously put at 440 and 429 A.U.C.), the nexum also passed out of use, and very soon disappeared. Varro 1. c. Liber qui suas operas in servitutem pro pecunia, quam debebat, dat, dum solveret, nexus vocatur, ut ab aere obaeratus.' Liv. VIII. § 28: Eo anno plebei Romanae velut aliud initium libertatis factum est, quod necti desierunt.-Victum eo die . . . ingens vinculum diei; iussique consules ferre ad populum, ne quis, nisi qui noxam meruisset donec poenam lueret, in compedibus aut in nervo teneretur; pecuniae creditae bona debitoris, non corpus obnoxium esset: ita nexi soluti cautumque in posterum, ne necterentur.2 SECONDLY, VERBORUM OBLIGATIONES. § 117. IN GENERAL. STIPULATIO AND DOTIS DICTIO. The most important and most frequent case of ' verborum obligationes' in Roman legal dealings is the 'Stipulatio." 1 A freeman that gives his labour for slavery, in consideration of the money he owed, until he should discharge the debt, is called nexus, as enslaved for debt. 2 In that year another beginning, so to speak, of liberty was made for the Roman Plebs., for they ceased to be bound.-A great bond of credit was gained on that day; and the consuls were ordered to propose to the people that no one should be detained in stocks or in fetters, save him that had deserved punishment, until he had satisfied the penalty; that the goods of a debtor, not his body, should be liable for money owing: thus nexi were released, and it was provided for the future that they should not be bound. See' Anct. Law,' pp. 326 330. |